|By Jeremy Geelan||
|October 5, 2004 12:00 AM EDT||
It's not often, recently, that the editor of Groklaw.net, Pamela Jones - a.k.a. "PJ" - has expressed much sympathy for Sun.
Normally she is at the forefront of those criticizing Sun's management for their settlement with Microsoft, which she argues is nothing more than a pact to fight off the enterprise Linux challenge represented by Red Hat:
"Sun and Microsoft evidently have figured out from the SCO wars...that attacking the FOSS community is suicide. So they have a new strategy: they will isolate Red Hat from the GNU/Linux herd, and they are now stalking it with the clear intent to destroy it." (Groklaw.net, September 28, 2004)
But this week Jones is singing a different tune, because - compared to what she sees as the "truly disgusting" iniquity of Kodak's patent-infringement suit against Sun Microsystems - the Sun-Microsoft pact dwindles in significance.
Referring to Friday's decision in Kodak's favor by the federal jury in Rochester, NY, Jones aserts that "Kodak won, thanks to a patent system spinning out of control, one that is destroying creativity and innovation in the software industry."
"Sun, for all its faults," PJ writes, "developed Java. Sun is a tech company that cares about excellence, and they have put their heart and soul into developing Java. A community formed around Java too, and many, many individuals also contributed to its development."
Contrast this, she implies, to the low-down tactics of the Eastman Kodak Co.
"Kodak now says it will seek, in the damages part of the trial, $1.06 billion in past royalties, which they calculate represents *half* of Sun's operating profit from the sales of computer servers and storage equipment between January 1998 and June 2001. Why do they feel that is fair? Because Java provides 'the engine for such computer equipment.' Puh-lease. This is their workaround. You can download Java free, so I gather they wish to grab their royalties loot from Sun's hardware sales instead. I would expect them to also try to work out some kind of ongoing royalty deal as well, until the patent runs out. What kind of an upside-down, irrational Alice-in-Wonderland world do we live in, where such a result is possible?" (Groklaw.net, October 3, 2004)
The current patents laws "reward the Kodaks of the world," Jones continues, "and penalizes Sun for years and years of expense and sweat and toil and creativity by robbing them of their due reward, not to mention removing any motive to ever do such innovative things again as long as they live."
Strong language indeed.
Oddly, and by a strange coincidence, Sun's own president and COO, Jonathan Schwartz, blogged on Friday - the very same day the federal jury handed down its decision that the Java programming language infringes on patents held by Eastman Kodak - that, on the contrary, software and patents were not just strange bedfellows, but necessary room-mates.
Friday's entry, entitled "I believe in IP," began in resounding Schwartzian style:
"I believe in intellectual property. In my view, it's the foundation of world economies, and certainly the foundation upon which Sun Microsystems was built. Copyright, trademark, patent - I believe in them all. I also believe in innovation and competition - and that these beliefs are not mutually exclusive."
"If you look at Sun's business," Schwartz continued, "all we really are, like most of our peers in the technology industry (and the media and entertainment industries with which we're converging), is an intellectual property fountain. Pour money in the top, some of the world's most talented people go to work, intellectual property falls out the other end. We happen to turn our IP into storage and servers and software and services - but realistically, that's what our manufacturing and service partners do for us. All Sun ultimately does is create ideas, design systems and engage communities."
So what, more specifically, is his stance on patents? Here is what Schwartz wrote:
"A few weeks ago, the CEO of one of the more popular open source companies called and asked me to support their stance on the invalidation of software patents. I listened closely, I respect the guy and his company. But this was the same CEO who forbade Sun from shipping his open source technology with Solaris based on a curious interpretation of the GNU Public License. And based on rabid enforcement of copyright. He was looking for broadscale support for invalidation of software patents - not spurious patents, not the kind that are acquired for litigation, but the whole concept of software patents.
And so I asked - 'I'm not sure why you're asking my support to invalidate what Sun's stockholders have invested tens of billions of dollars to create, when you'd cringe if I told you to give away your largest asset, your copyright and brand.' His answer, 'You just don't understand.' He was right, I didn't and don't. And we're going to agree to disagree.'"
What goes for Sun presumably goes for Eastman Kodak, which purchased the disputed patents from Wang Laboratories in 1997 when it bought Wang's imaging software business for $260 million and is now looking for restitution in the damages part of the trial to the tune of $1.06 billion in past royalties, which Kodak's lawyers calculate represents half of Sun's operating profit from the sales of computer servers and storage equipment between January 1998 and June 2001. So are we to assume that Sun won't be protesting the federal jury decision?
We are not. Sun's lawyers will on the contrary, be mounting "a vigorous defense" in the damages phase of the trial, they say.
Their argument to date has been that Java does not violate the Kodak patents, and that - even if it does - they are invalid.
This may be difficult to reconcile with Schwartz's spirited blog. "I continue to believe in the protection of ideas conveyed by patents," he writes. "From drug discovery to academic work, the protection of IP is part and parcel of what incents inventors to invent, and investors to invest."
As they say: in this life, timing is everything.
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